Abuse of Discretion: The Smackdown of the Judge In Trump’s Pocket

Geographic Footprint For The 11th Circuit of the United States Court of Appeals

Trump world celebrated the decision by Judge Aileen Cannon to interfere with the government’s investigation of stolen classified materials found hidden at Mar-a-Lago after a judge authorized search warrant. Judge Cannon was a late Trump appointee, who was not confirmed until after the 2020 election, and Trump was confident in her loyalty to him. Her assignment to the case was by design. Trump “forum shopped” or “judge shopped” by filing in a district where she was the only judge.

How We Got To The Court of Appeals

Trump’s confidence in Cannon’s loyalty was well placed as she issued decisions effectively preventing the FBI from continuing its investigation into the classified documents found in that search warrant. It’s helpful to review the process of how we got to Cannon’s decision, and the United States Court of Appeals partially reversing it.

• Shortly after Trump left office the National Archives and Records Administration discovered various “Presidential records” that by law should belong to NARA were missing. Throughout 2021 NARA conferred with Trump lawyers seeking the return of the documents.
• In January 2022 Trump shipped 15 boxes of records to NARA. NARA was startled to discover that exceptionally highly classified materials were haphazardly mixed in with the materials provided.
• In February 2022 NARA referred the matter to the FBI. The FBI/DOJ opened a formal grand jury criminal investigation in April. During this investigation the FBI developed evidence that more classified documents remained at Mar-a-Lago.
• On May 12 the grand jury issued a subpoena demanding return of all documents with classified markings held by Trump or at Mar-a-Lago. Trump’s attorneys have characterized even events after this as “friendly give and take” between attorneys. Whatever else occurred before then, any friendly given and take ended with that grand jury subpoena. The subpoena compels production of the documents under penalty of law.
• On June 3 DOJ attorneys met at Mar-a-Lago with Trump attorneys who gave them an envelope with some more classified documents. The DOJ was also given an affidavit, sworn under penalty of perjury by Trump Attorney Christina Bobb that assured the FBI/DOJ that after a diligent search by Trump counsel, no materials responsive to the subpoena remained at Mar-a-Lago.
• On June 24 the grand jury subpoenaed to get security video of the area around the storage room. This was provided on July 6th. The video showed boxes being moved from the room.
• Over July the FBI developed evidence, to include from witnesses, that contrary to the sworn affidavit, significant amounts of highly classified material remained in Mar-a-Lago.
• On August 5th Judge Reinhart approved a search warrant finding probable cause that evidence of violations of Espionage Act, illegal holding of national defense records, and obstruction of justice would be found at Mar-a-Lago.
• On August 8 DOJ attorneys and the FBI executed the search warrant at Mar-a-Lago. In the storage closet and in Trump’s office and his personal desk they seized approximately 100 documents labeled as classified, many of them Top Secret with even higher limiting codes.
• On August 22, two weeks after the search, Trump’s counsel filed a request for an injunction precluding the DOJ/FBI from using the classified documents in its criminal investigation. Trump requested that a “special master” be appointed to review all the documents taken on the chance some might be protected by attorney/client or nonexistent executive privilege.
• On September 5 Judge Cannon bizarrely granted Trump’s motion, effectively halting an ongoing national security investigation.

The government appealed as to the 100+ classified documents. On September 21 the 11th Circuit Court of appeals granted the government’s motion to stay Cannon’s decision allowing the criminal investigation to proceed. This article is about that Court of Appeals decision and will attempt to explain the decision in terms non-lawyers can understand.

An Easy Call

The 11th Circuit is dominated by Trump appointees and this three judge panel included two Trump appointees. Even so, their ruling against Judge Cannon was both strongly worded and unanimous. You can read the decision HERE.

The first thing to notice is that decision was issued “per curiam” meaning “by the court.” Normally a specific judge is identified as the author of the opinion, with any others joining in it. The rather unusual per curiam decision means no specific judge is identified as the author, it was issued simply “by the court” as a whole. In this case it was unanimous. Per curiam decisions normally indicate the court views the decision as not controversial, i.e. an easy call.

The strong language referred to is where the court twice used the phrase “the district court abused its discretion.” The softer term is to simply say the district court “erred.” Use of the phrase “abused its discretion” suggests the Court of Appeals viewed Cannon’s decision as a beyond simple judicial error.

In non-lawyer terms, the Court of Appeals let Judge Cannon know that her decision was completely out to lunch. Let’s discuss why.

The Burden On The Government

In seeking a stay on Cannon’s order prohibiting use of the classified documents in any criminal investigation, the burden was on the government, and it was a rather high burden. A stay is a temporary suspension of the lower court’s decision while the Court of Appeals considers the government’s appeal in full. In this case it allows the government proceed with the investigation while the appeal is pending full adjudication. To get the stay the government must make a “strong showing” that it:

1. Is likely to succeed on the merits when the matter if fully considered.
2. Will be irreparably harmed absent the stay. This harm must be real, and not speculative or hypothetical.
3. the stay will not substantially injure the other party.
4. the public interest is served by the stay.

The judge obviously started with that first one. Unless the government can show it is likely to ultimately succeed on the merits a stay pending adjudication is unjust.

Equitable Jurisdiction

For any court to hear a case it must have jurisdiction over the matter presented. Normally jurisdiction is established as a matter of law, the plaintiff normally cites a statute granting such jurisdiction. However, in rare and exceptional circumstances federal courts can assert jurisdiction when equity (fundamental fairness) demands. This is called “equitable jurisdiction” and it is supposed to be used in only the most rare and extreme of cases, when fundamental fairness demands that a court step in to create jurisdiction where none otherwise exists in law.

The so-called “Richey criteria” (named after the case that establishing such jurisdiction) define the basis for a court accepting equitable jurisdiction. They are:

1. whether the government displayed callous disregard for . . . constitutional rights in seizing the items at issue.
2. whether Trump has an individual interest in and need for the material whose return he seeks.
3. whether Trump would be irreparably injured by denial of the return of the property.
4. whether Trump has other adequate remedies at law to redress of his grievances.

So let’s start with that first criteria. Trump needed to prove to Cannon that the government displayed callous disregard for his Constitutional rights. This “callous” standard is high, requiring something that shocks propriety or sense of justice.

Not even Judge Cannon could bring herself to say that. Cannon agreed that this crucial first criteria was not met. There was no callous disregard for Trump’s rights when the established process for getting a judge issued search warrant was meticulously followed.

The government argued precedent establishing this criteria as “foremost” among the four. A friend of the court (amicus) brief filed by former prosecutors said they could not find a single case of equitable jurisdiction being exercised in the absence of this apparently crucial, single, criteria.

The Court of Appeals agreed, describing the first criteria as “indispensable.”

“The absence of this ‘indispensable’ factor in the Richey analysis is reason enough to conclude that the district court abused its discretion in exercising equitable jurisdiction here.”

Judge Cannon, while acknowledging the failure of Trump to show this first criteria, said the other three weighed in Trump’s favor. She wrongly viewed it as a balancing test where the first criteria not being met could be out balanced by the others being met, when in reality meeting the first criteria is a threshold issue.

However, the Court of Appeals evaluated the other three criteria as well.

As for the second Richey factor, whether Trump had an individual, basically ownership, interest in the documents, the Court of Appeals was baffled as to how anyone could say Trump had such an interest in documents marked classified.

“we cannot discern why Plaintiff would have an individual interest in or need for any of the one-hundred documents with classification markings . . . They are owned by, produced by or for, or . . . under the control of the United States Government.”

It was here that Trump’s lawyers argued Trump may have, as President, declassified the documents while refusing to say whether Trump actually did. The Court rightfully dismissed this “maybe he did, maybe he didn’t” argument.

“Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified. And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents.”

The Court then pointed out that even had Trump declassified them that would not mean they became his property.

“the declassification argument is a red herring because declassifying an official document would not change its content or render it personal. So even if we assumed that Plaintiff did declassify some or all of the documents, that would not explain why he has a personal interest in them.”

Thus, contrary to Judge Cannon’s ruling the second Richey factor weighed against Trump.

The third Richey factor was whether Trump would be irreparably harmed by the property not being returned to him. Judge Cannon claimed three possible irreparable harms to Trump:

(1) leaks of sensitive information to the public;

(2) the United States’s retention and use of privileged materials;

(3) the stigma associated with a future wrongful prosecution.

It should be noted that both 1 and 3 are speculative, and the harm from this criteria must be a “will,” not a “might.”

The Court of Appeals noted that if mere threat of future prosecution was “irreparable harm” then “every potential defendant could point to the same harm and invoke the equitable powers of the district court . . . If this concern were sufficient to constitute irreparable harm, courts’ exercise of their equitable jurisdiction would not be extraordinary, but instead quite ordinary.”

It was here the Court of Appeals also noted that courts almost never prospectively restrain criminal investigations. Thus, the court found that the third Richey factor weighed in favor of the government.

That left only the fourth factor, of whether Trump had any other remedy at law for the return of “his” property. Having found the classified documents were not, and could not, be Trump’s property the Court of Appeals found this Richey factor also weighed in favor of the government.

Having already found Judge Cannon abused her discretion by failing to give decisive weight to the first factor indisputably not being met, the Court of Appeals then found Judge Cannon abused her discretion in finding the other three factors did weigh in Trump’s favor.

“In sum, none of the Richey factors favor exercising equitable jurisdiction over this case. Consequently, the United States is substantially likely to succeed in showing that the district court abused its discretion in exercising jurisdiction.”

The Remaining Criteria For A Stay

Thus the government prevails on the crucial first criteria for a stay, that it is likely to succeed when the matter if fully adjudicated. The judge then moved to the other three criteria.

The second was whether the government would be irreparably harmed without a stay. The court found virtually any delay of a criminal investigation related to national security constituted irreparable harm. The court cited extensive precedent with a compelling history of judicial restraint on national security matters.

The third criteria was whether Trump would be unjustly injured by granting the stay. Certainly, being a potential target of a criminal investigation is potentially damaging, but that is true for any potential target.

The fourth criteria is whether the public interest is served by a stay. I’ll just quote the court:

“The documents at issue contain information ‘the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security.’ [citations] It is self-evident that the public has a strong interest in ensuring that the storage of the classified records did not result in ‘exceptionally grave damage to the national security.’ Ascertaining that necessarily involves reviewing the documents, determining who had access to them and when, and deciding which (if any) sources or methods are compromised. [citation] For these reasons, we conclude that the public interest favors a stay.”

To summarize, the District Court abused its discretion in even taking on the case. Given that, granting the government’s motion to stay the District Court’s interference in an ongoing national security investigation is an easy call.